OUR POSITION ON KITNIYOT

OUR POSITION ON KITNIYOT DERIVATIVES

KITNIYOT

Perhaps no issue stirs as much debate as the debate swirling around kitniyot- generally translated as legumes. According to Ashenazi custom and law, we are not allowed to eat kitniyot on Pesach. Rabbi Yosef Karo, the creator of the Shulchan Aruch called the custom of not eating kitniyot a “foolish custom.” Rav
Yaakov Emden said of kitniot; “In truth, the mind cannot comprehend the
stringencies which are created on a daily basis”.

Rabbi Zvi Leshem, Mara D’Atra of Kehillat Shirat Shlomo of Efrat, Israel, wrote in his famous tshuvah re kitniyot: “The first source to mention the custom of refraining from kitniot is a note of R. Peretz to the Sefer Mitzvot HaKatan from the 13th century. He explains that the reason for the decree is “because kitniot are cooked in a pot, and grains are also cooked in a pot, if we allow kitniot, perhaps someone will confuse them… .”

“Additionally, there are places where they bake them [kitniot] into bread like
the five species [of grain], which could also be confused.” In other words, the
first reason for the prohibition is the risk of confusing between a cooked dish
of kitniot and one of grain, or between legume flour and grain flour, which can
become chametz. Regarding the authority of the custom, he writes, “It is very
difficult to permit something that has been customarily prohibited from the time
of ancient authorities.””

So, what are kitniyot? The original list of kitniyot (if one can be said to exist) consisted of rice, beans, peas, corn, millet and lentils. One source, the Chayei Adam also included potatoes in the ban, but pretty much everyone else said,” No” to his opinion. Beyond that, the list was created outside of Israel and was meant to be a closed list. We do note, however, that R. Moses Isserles added to the list in his gloss to the Shulchan Aruch.

R. Isserles added buckwheat to the list. The only problem with that is that buckwheat is not a grain; it is a flower!

Over the years, the Israeli Chief Rabbinate has added many items to the closed list of kitniyot. Some of the things they added were canola oil and quinoa.

As a result, we are left with a custom of dubious legal valence and of confusing standards of practice.

Even more incredible, we believe that because the customs surrounding kitniyot were created outside of Israel, they were not meant to apply there. In fact, Rabbi David Bar-Hayim of Machon Shilo offers a unique, Orthodox approach: he has published a responsum outlining his opinion that there is no binding custom on Ashkenazim in the Land of Israel, as historically this was not the local practice (which, he explains, is the essence of custom); in March 2007 he released a ruling that all Jews in the Land of Israel are permitted to eat kitniyot. In truth, aside from a small group of his followers, the vast majority of religiously observant Ashkenazim in Israel still refrain from eating kitniyot on Passover.

Let’s take a look at oils derived from kitniyot. Once again, let us quote from Rabbi Leshem’s tshuvah:

The Sefer Marcheshet writes that the Rema (who forbade kitniyot derived oils) was referring to oils made from kitniot that had not been properly checked for grain content before Pesach. He adds that the oil is also considered “a mere derivative”, which is not prohibited within the confines of a custom. His conclusion is that all kitniot oils produced before Pesach that have rabbinical supervision for Pesach are permitted.

Even if we argue that this is not the custom and that Ashkenazim do not
consume kitniot oils on Pesach, we have found later-day authorities who were
lenient regarding certain oils in cases where there was an additional factor
for leniency. For example, Rav Kook z”l, in a famous teshuva, permitted
sesame oil that was produced without coming into contact with water, and
wrote very strongly against the opinion of those who prohibited it (the Hasidic
Rabbinical Court of Jerusalem), claiming that since the oil was produced with
a new production method, it was not included in the prior custom and was thus
permissible. He added that the existing custom of refraining from kitniot, which
began as a mere stringency, is sufficient as is, and it would be unfortunate to
expand it, especially if this would cause financial loss.
Rav Moshe Feinstein z”l in a discussion in Igrot Moshe, states that peanuts
are not included within the custom, and that one should not add new items to
the prohibition of kitniot, since it is a custom that is based upon weak reasons.
Therefore, he concludes, it is legitimate to give peanut oil “kosher for Pesach”
certification.

Similarly we can discuss the case of the soybean, which is also a new type of
food and was not included in the original prohibition of kitniot. Thus there are
authorities who permit soy oil, also – similarly to Rav Kook’s position above
– citing the fact that it is produced without coming in contact with water. So
too we can permit canola oil, which is also produced from a new and inedible
source.

In light of all of the above we can state that it is permissible to rely upon the
lenient positions as regards types of oils where there is an additional lenient
factor, such as peanut, soy, canola and cottonseed (which is also not produced
from a food item). Even though we find authorities who prohibit these various
oils, one need not be stringent, as the author of the Ohr HaChaim states, “We
hold that in all doubts regarding rabbinic decrees, and even more so when
it comes to customs, that one should be lenient.” It is sufficient for us to be
stringent about peanuts and soybeans themselves – we can be lenient regarding
their oils.”

We note that the late R. Moshe Feinstein, outside of any community wide prohibition against it, allowed the eating of peanuts on Pesach. So what we are left with is that kitniyot derived oils are absolutely permitted on Pesach.

Additionally, R. Feinstein also wrote: Igrot
Moshe writes: “This is not the matter at all, that everything from which flour
is produced is prohibited according to this custom, for nothing has more flour
made from it than potatoes, not only in this country [the United States], but also
in Europe… and no one was ever concerned that it is prohibited. And regarding
the argument that types of grains may come to be mixed in with them, which
was mentioned in the Tur, it is also not a general rule that every food that might
have wheat or barely mixed in is prohibited.” As we shall see below, among
the later-day authorities there are those who state that since there is not a clear
definition of what constitutes kitniot, only those types that were included in the
original custom are prohibited, and one should not prohibit additional types.
(Quoted by Rabbi Leshem)

But what of kitniyot derived oils (ie, mei kitniyot)? Let us once again look at Rabbi Leshem’s tshuvah: Regarding oils from kitniot, the Chayeh Adam infers from the words of the Rema above that “it is permissible to light with oils produced from them,” that while it is permitted to benefit from the oil, it is forbidden to consume it.
However not all authorities agree with this inference, and the Sefer Marcheshet
writes that the Rema was referring to oils made from kitniot that had not been
properly checked for grain content before Pesach. He adds that the oil is also
considered “a mere derivative”, which is not prohibited within the confines of a
custom. His conclusion is that all kitniot oils produced before Pesach that have
rabbinical supervision for Pesach are permitted.
Even if we argue that this is not the custom and that Ashkenazim do not
consume kitniot oils on Pesach, we have found later-day authorities who were
lenient regarding certain oils in cases where there was an additional factor
for leniency. For example, Rav Kook z”l, in a famous teshuva, permitted
sesame oil that was produced without coming into contact with water, and
wrote very strongly against the opinion of those who prohibited it (the Hasidic
Rabbinical Court of Jerusalem), claiming that since the oil was produced with
a new production method, it was not included in the prior custom and was thus
permissible. He added that the existing custom of refraining from kitniot, which
began as a mere stringency, is sufficient as is, and it would be unfortunate to
expand it, especially if this would cause financial loss.
Rav Moshe Feinstein z”l in a discussion in Igrot Moshe, states that peanuts
are not included within the custom, and that one should not add new items to
the prohibition of kitniot, since it is a custom that is based upon weak reasons.
Therefore, he concludes, it is legitimate to give peanut oil “kosher for Pesach”
certification.
Similarly we can discuss the case of the soybean, which is also a new type of
food and was not included in the original prohibition of kitniot. Thus there are
authorities who permit soy oil, also – similarly to Rav Kook’s position above
– citing the fact that it is produced without coming in contact with water. So
too we can permit canola oil, which is also produced from a new and inedible
source.
In light of all of the above we can state that it is permissible to rely upon the
lenient positions as regards types of oils where there is an additional lenient
factor, such as peanut, soy, canola and cottonseed (which is also not produced
from a food item). Even though we find authorities who prohibit these various
oils, one need not be stringent, as the author of the Ohr HaChaim states, “We
hold that in all doubts regarding rabbinic decrees, and even more so when
it comes to customs, that one should be lenient.” It is sufficient for us to be
stringent about peanuts and soybeans themselves – we can be lenient regarding
their oils.”

Rav Leshem concludes: Based upon the above we can conclude:
1: Some of the oils designated as “kitniot” or “only for those who eat kitniot”
are permissible also to Ashkenazim (even according to the position which
prohibits kitniot oil), such as peanut, soy, canola and cottonseed oils.
2: Some of the products that are labeled “for those who eat kitniot only”
are permissible according to all opinions, since the ratio of kitniot ingredients
is less than 50%, and they are therefore annulled in the majority of non kitniot
ingredients. Additionally the kitniot ingredients are often oils such as
soybean, that were never included in the prohibition, or derivatives of these
oils. Only those foods in which the kitniot ingredients constitute the majority
are prohibited. Therefore, many dairy products, “kosher for Pesach” cookies,
chocolates and more, which are labeled “kitniot” or “only for those who eat
kitniot” or “for those who eat liftit” (liftit and lecithin are both types of canola)
are completely permissible for Ashkenazim.
3: Quinoa, which is a very new food (other than for native South
Americans), is permissible.
4: There is no problem for an Ashkenazi to be a guest of a Sephardi on
Pesach and to eat food prepared in vessels that were used to cook kitniot, even
within 24 hours of the meal. Even if the food contains a kitniot ingredient, as long as it
is not the majority and is not recognizable as a separate element of the dish, it is
also permitted.
5: Those people who have thus far been careful not to purchase any food
item labeled “for those who eat kitniot only”, because they believed that
this was in fact the Halacha, are not considered to have accepted this as
their custom; it is at best a “mistaken custom” and they are not required to
perform “vow annulment” in order to eat such items.

WE CONCUR.